Milner v. Black

Plaintiff
Shawn Milner, currently incarcerated at the Northern
Correctional Institution in Somers, Connecticut, filed this
case pro se under 42 U.S.C. § 1983 alleging
that the defendants were deliberately indifferent to his
serious medical needs. Milner names as defendants Warden
Allison Black, Deputy Warden Kim Jones, Lieutenant Devone
Bishop, Correctional Officer Ried, Correctional Officer John
Doe, Dr. Sara Blumberg, and Nurse Michael Tyszka. The
complaint was scanned at the correctional facility and was
received by the court on September 27, 2016. (doc. 1)
Milner's motion to proceed in forma pauperis was
granted on September 29, 2016. (doc. 6)

Under
section 1915A of title 28 of the United States Code, the
Court must review prisoner civil complaints and dismiss any
portion of the complaint that is frivolous or malicious, that
fails to state a claim upon which relief may be granted, or
that seeks monetary relief from a defendant who is immune
from such relief. Id. Although detailed allegations
are not required, the complaint must include sufficient facts
to afford the defendants fair notice of the claims and the
grounds upon which they are based and to demonstrate a
plausible right to relief. Bell Atlantic v. Twombly,
550 U.S. 544, 555-56 (2007). Conclusory allegations are not
sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Nevertheless, it is
well-established that “[p]ro se
complaints 'must be construed liberally and interpreted
to raise the strongest arguments that they
suggest.'” Sykes v. Bank of Am., 723 F.3d
399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see
also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir.
2010) (discussing special rules of solicitude for pro
se litigants).

I.
Allegations

After
Milner was admitted to the Bridgeport Correctional Center, he
informed the intake nurse, Michael Tyszka, that he had a
seizure disorder, had been issued a bottom bunk pass and was
prescribed various medications. When he reached his housing
unit, Milner told Unit Officer Doe that he had a bottom bunk
pass as a result of his seizure disorder. Officer Doe told
Milner that no one told him about the pass. He told Milner to
enter the cell and he would contact a supervisor. Shortly
thereafter, Officer Doe stated that Nurse Tyszka denied that
Milner had a bottom bunk pass. When Milner complained that
the pass had been honored at his previous place of
confinement, Officer Doe stated that there was nothing he
could do and directed Milner to speak to a lieutenant when he
toured the housing unit.

On
March 28, 2016, Milner wrote to Lieutenant Bishop after
having spoken with her during a tour of the unit. Milner
complained about being in a top bunk despite a diagnosed
seizure disorder and a bottom bunk pass. Lieutenant Bishop
did not respond to the letter or take any action to address
the situation.

On
March 29, 2016, Milner wrote to Dr. Blumberg. Nothing was
done. On March 30, 2016, Milner wrote to Warden Black about
his medical issue. He complained about being forced into a
top bunk despite having a bottom bunk pass. Milner received
no response and no action was taken.

On
April 3, 2016, Milner began to feel lightheaded. He saw spots
and experienced blurred vision. Milner recognized these
symptoms as preliminary indicators of a seizure. Milner
called for help. After about ten minutes, Correctional
Officer Ried came to Milner's cell door. Milner explained
that he was experiencing signs of an oncoming seizure and
asked Correctional Officer Ried to contact the medical unit.
Milner began to feel extremely disoriented and got into his
top bunk. Milner experienced a violent tonic-clonic seizure,
which caused him to fall off the bunk onto the concrete
floor. Milner injured his shoulder and head in the fall.

Milner
remained on the floor, seizing, until a “code white,
” signaling a serious medical emergency, was called.
Nurse Tyszka responded to the code and observed Milner
convulsing on the floor. Milner was taken to the medical unit
on a stretcher. He awoke in an ictal state and slowly
recovered his orientation. Milner further alleges that the
medical code was not called until Milner's cellmate and
other inmates on the tier had been banging and yelling for
ten minutes. Milner now fears being returned to a top bunk.

II.
Analysis

Milner
includes two counts in his complaint. In the first count, he
alleges that all defendants were made aware of his seizure
disorder, yet failed to protect him from harm. In the second
count, Milner alleges that the defendants were deliberately
indifferent to his serious medical need when they failed to
provide needed treatment for his condition.

It is
well settled in this circuit that a plaintiff must allege
facts demonstrating the personal involvement of each
defendant in the alleged constitutional violation before
damages can be awarded. See Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Milner alleges that he wrote to defendants Lieutenant Bishop,
Warden Black and Dr. Blumberg about his situation. Although
those allegations may not be sufficient at trial or on a
motion for summary judgment, they are sufficient to state a
claim for supervisory liability against those three
defendants. See Grullon v. City of New Haven, 720
F.3d 133, 141 (2d Cir. 2013). Milner, however, makes no
allegations against defendant Deputy Warden Jones in his
statement of facts. Absent any allegations that she was even
aware of the situation, there is no factual basis for a
damages claim against her. Any claim against defendant Jones
in her individual capacity is dismissed pursuant to 28 U.S.C.
§ 1915A(b)(1).

Milner
also asserts a claim for deliberate indifference to a serious
medical need. To state a claim for deliberate indifference to
a serious medical need, a plaintiff must show both that his
medical need was serious and that the defendants acted with a
sufficiently culpable state of mind. See Smith v.
Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (citing
Estelle v. Gamble, 492 U.S. 97, 104 (1976)). There
are both objective and subjective components to the
deliberate indifference standard. See Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Objectively,
the alleged deprivation must be “sufficiently
serious.” Wilson v. Seiter, 501 U.S. 294, 298
(1991). The condition must produce death, degeneration, or
extreme pain. See Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996). Subjectively, the defendants must have
been actually aware of a substantial risk that the inmate
would suffer serious harm as a result of their actions or
inactions. See Salahuddin v. Goord, 467 F.3d 262,
279-80 (2d Cir. 2006). Negligence that would support a claim
for medical malpractice does not rise to the level of
deliberate indifference and is not cognizable under section
1983. See id.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Milner
alleges that he suffers from a seizure disorder. Other
district courts considering this condition have held that a
seizure disorder is a serious medical need. See, e.g.,
Harrington v. Vadlamudi, 2016 WL 4570441, at *7
(N.D.N.Y. Aug. 9, 2016) (“A seizure condition is a
serious medical condition and a failure to respond to an
inmate's complaints constituting the possible onset of a
seizure may constitute a ...

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